State Ex Rel. Pinkard v. Henderson

452 S.W.2d 908, 2 Tenn. Crim. App. 240, 1969 Tenn. Crim. App. LEXIS 360

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 28, 1969
• Status: Published

Opinions

OPINION

OLIVER, Judge.

Isaiah Pinkard, the plaintiff in error and petitioner below, an inmate of the penitentiary where he is serving a 99-year sentence for unlawful carnal knowledge of a female under 12 years of age, appeals to this Court from the judgment of the Circuit Court of Maury County dismissing, without an evidentiary hearing, his petition filed under the Post-Conviction Procedure Act of this State (T.C.A. §§ 40-3801 — 40-3824).

The only question presented in the petition and here is whether imposition of a more severe sentence upon reconviction in a second trial than he received in his original trial violated the petitioner’s constitutional rights.

In the petitioner’s original trial in April of 1948, he was sentenced to imprisonment for 20 years in the penitentiary. Later in the same month the trial court sustained and granted his motion for a new trial. Upon his retrial in July of 1948, he was again convicted by a jury and sentenced to 99 years in the State Penitentiary. His contention that the increased punishment imposed in his retrial violated the due process and equal protection clauses of the Fourteenth Amendment is untenable. It is unquestionable that a defendant who procures a judgment against him to be set aside may be tried anew upon the same indictment, or upon another indictment, for the same offense. Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 449. In our opinion reason is on the side of the rule that when a convicted defendant seeks and obtains reversal of his conviction and a new trial, he must take the burden with the benefit. Miller v. United States, 224 F.2d 561 (5th Cir. 1955). Such is the settled law in this State.

In Murphy v. State, 221 Tenn. 351, 426 S.W.2d 509, rejecting the same contention made in the present case, the Court said:

“The defendant further argues in this assignment that it is a violation of due process under the 14th Amendment of the Federal Constitution to impose a harsher penalty on retrial than at the original trial. Here, the defendant received a sentence of 20 years at his original trial and 50 years upon retrial. This Court considered a similar contention involving double jeopardy in State ex rel. Austin v. Johnson (1966) [218 Tenn. 433,] 404 S.W.2d 244, where this Court said:

‘(W)hen the accused, himself, procures a judgment to be set aside upon his own initiative and he voluntarily accepts the result, then he cannot by his own act avoid the jeopardy in which he stands and then assert it as a bar to a subsequent jeopardy.’

“Similarly, if the defendant seeks a new trial, he must be prepared to face a new court and a new jury without limitations being placed on their decision.

“If defendant’s contention was taken as correct, he could technically escape further prosecution. His initial conviction was reversed and a new trial granted because the jury’s verdict of 20 years was less than the minimum statutory sentence of 'some period over 20 years.’ If defendant’s argument were accepted, the jury would be precluded from awarding a sentence of more than 20 years. Since they could not fix one for 20 years or less, no sentence would be permissible.”

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court, considering the same question, said:

“Long-established constitutional doctrine makes clear that, beyond the requirement already discussed the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon re-conviction. At least since 1896, when United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, was decided, it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. The principle that this provision does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.’ United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448. And at least since 1919, when Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, was decided, it has been settled that a corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction. * * * •“* * * jn the first place, we deal here, not with increases in existing sentences, but with the imposition of wholly new sentences after wholly new trials. Putting that conceptual nicety to one side, however, the problem before us simply cannot be rationally dealt with in terms of ‘classifications.’ A man who is retried after his first conviction has been set aside may be acquitted. If convicted, he may receive a shorter sentence, he may receive the same sentence, or he may receive a longer sentenc than the one originally imposed. The result may depend upon a particular combination of infinite variables peculiar to each individual trial. It simply cannot be said that a State has invidiously ‘classified’ those who successfully seek new trials, any more than that the State has invidiously ‘classified’ those prisoners whose convictions are not set aside by denying the members of that group the opportunity to be acquitted. To fit the problem of this case into an equal protection framework is a task too Proscrustean to be rationally accomplished.

“We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon recon-viction.”

With respect to the petitioner’s insistence that the imposition of the greater sentence in his retrial was to punish him for seeking and obtaining a new trial, it is only necessary to point out that in both trials the jury, and not the judge as in Pearce, supra, assessed the punishment; and that there is no averment or insistence by the petitioner that the retrial jury had any knowledge of or was in any way influenced by his having been granted a new trial at his behest after his original conviction. Indeed, it is practically inconceivable that the second jury had such knowledge or was so motivated.

The judgment of the trial court is affirmed.

This case was heard and submitted to the Court prior to enactment of Chapter 330 of the Public Acts of 1969 increasing the membership of the Court.

WALKER, P. J., concurs.